Some Methodological Flaws in Addressing Immunity: Jones v UK

Even though rather recent, the case of Jones v UKbefore the European Court of Human Rights (ECtHR) has become a popular topic for discussion – at least and so far on international law blogs (see EJILTalk! and Opinio juris). This also implies that it is perhaps not easy to find as yet undiscovered aspects of the case. Although not entirely undiscovered, this blog post aims to unveil some methodological aspects in the Court’s reasoning.

The case concerned whether the United Kingdom had violated the right to access to justice under Article 6 of the European Convention on Human Rights (ECHR) by granting, in civil procedures, immunity to the Kingdom of Saudi Arabia and some of its officials for alleged acts of torture. According to the ECtHR, there was no violation in either instance. While the Court was in a fairly easy position with regard to justifying its conclusion as to State immunity – given its previous Al-Adsanicase as well as the Jurisdictional Immunities of the Statecase of the International Court of Justice (ICJ) –, it was at pains to find arguments to reject the need of lifting immunity in case of State officials. This blog entry focuses on this latter aspect by addressing the methodological flaws in the Court’s argumentation following the steps the Court took.

Legitimate Aim: (State) Immunity

As a point of departure, the Court indicated that it would follow the Grand Chamber’s approach in Al-Adsani since ‘the Court was acting in accordance with its obligation to take account of the relevant rules and principles of international law and to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part’ (para 195). In this case ‘the Court found that it had not been established that there was yet acceptance in international law of the proposition that States were not entitled to immunity in respect of civil claims for damages concerning alleged torture committed outside the forum State’ (para 191). Put differently, the Court relied on the rules of State immunity in order to establish whether or not State officials enjoy immunity. The reasoning of the Court in this regard was the following: ‘the immunity which is applied in a case against State officials remains “State” immunity: it is invoked by the State and can be waived by the State’ (para 200). Admittedly, the Court used this argument for examining whether under the concept of legitimate limitations the aim to interfere with the right to access to justice was legitimate.

Proportionality: Generally Recognised Rules of Public International Law are not Disproportionate

Surprisingly, the second step, that is the proportionality analysis, was turned around. Rather than assessing whether or not the measure itself was proportionate in the particular case, the Court departed from the idea that a generally recognised rule of international law should be deemed as proportionate. In the Court’s words, ‘measures which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court’ (para 201). This implies that the Court now has to look at whether there is a generally recognised rule under international law which grants functional immunity to State officials, and whether and to what extent there are exceptions when the case concerns alleged torture. (On the criticism that the Court did not actually carry out a proportionality assessment, see Lorna McGregor’s post on EJILTalk!) Such an assessment is rather different from the usual proportionality analysis also in terms of the applicable standard of proof. Although implicit, this presumption seems to relieve the State of or at least lower the standard of proof concerning the proportionality of the measure, mainly because the direction of the question changed. In other words, the Court did not apply a strict scrutiny as to the application of the immunity rules in the particular case.

a) Is There a Generally Recognised Rule?

Importantly, when investigating whether there is a general rule under public international law which grants immunity to State officials, the Court still relied on the concept of State immunity. It argued that ‘[s]ince an act cannot be carried out by a State itself but only by individuals acting on the State’s behalf, where immunity can be invoked by the State then the starting point must be that immunity ratione materiae applies to the acts of State officials. If it were otherwise, State immunity could always be circumvented by suing named officials’ (para 202). Although not explicitly referring to attribution, the Court essentially uses the language of the Draft Articles on State Responsibility. In the Court’s view the attribution (indeed, in this regard the Court uses this term) of acts of State officials to the State is also confirmed in several cases before domestic courts. Put differently, the existence of a general rule as to the functional immunity (or immunity ratione materiae) of State officials in civil cases was derived from the concept of State immunity – instead of examining the rules on the immunity of State officials themselves.

b) Is There an Exception from the General Rule?

The next question the Court addressed was whether or not there was exception from this general rule. Concerning the exceptions, the Court, finally and in the light of the above discussion rather unexpectedly, departed from considerations of State immunity per se and turned to the liability of individuals. It argued that ‘[t]he fact that there is no general jus cogens exception as regards State immunity rules is … not determinative as regards claims against named State officials’ (para 205).

In this context, the Court examined three of the generally invoked arguments against immunity of State officials: i) dual responsibility, ii) definition of torture under the Torture Convention and iii) (quasi-)universal civil jurisdiction under the Torture Convention. With regard to the first argument, i.e. dual responsibility (under Article 58 of the Draft Articles on State Responsibility), the Court explained that ‘as the existence of individual criminal liability shows, even if the official nature of the acts is accepted for the purposes of State responsibility, this of itself is not conclusive as to whether under international law a claim for State immunity is always to be recognised in respect of the same acts’ (para 207). This point seems to be a further elaboration of the relationship between the rules of attribution (under State responsibility) and immunity, as indicated to a certain extent in para 202 above. While above the point was made that State immunity (if it can be invoked) extends to State officials as their conduct is to be seen as conduct of the State itself, here the Court pointed out that the conduct of State officials would not automatically lead to State immunity. The Court deduced the immunity of State officials from State immunity, but it also added that their conduct would not in each and every case result in granting immunity. While this line of reasoning could have been relied on to show the existence of an exception from the general rule of granting immunity to State officials, the Court actually did not use this argument further when it examined the exceptions concerning torture/jus cogens norms.

The Court also elaborated to some extent on the second and third arguments. Namely, it looked at the definition of torture under the Torture Convention (an act committed by a ‘public official or other person acting in an official capacity’), and its focus on (quasi-)universal civil jurisdiction. Concerning the former, it explored relevant case-law in both civil and criminal cases. While there were cases in which the argument had been made that torture could not be committed in an ‘official capacity’, the Court still concluded that there existed a generally recognised rule of public international law as far as immunity of State officials for torture (official act) is concerned. In the words of the Court ‘while there is … some emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials, the bulk of the authority is … to the effect that the State’s right to immunity may not be circumvented by suing its servants or agents instead’ (para 213). In simple terms, in the Court’s view, the cases in which an exception was declared do not provide sufficient evidence for the existence of a new customary international law rule in this regard. So the immunity of State officials is still to be seen as derived from and strongly influenced by State immunity. (Whether and to what extent these cases are actually relevant for the point the Court intended to make see Micaela Frulli’s post on EJILTalk! and William S. Dodge’s post on Opinio juris).

As to the question of universal civil jurisdiction under the Torture Convention, the Court simply indicated that it was ‘far from settled’ (para 208). Put differently, this language indicates that so far no general agreement (or customary international law rule) can be established as to the interpretation of this provision in the Torture Convention. It is interesting to compare the language used by the Court in these two types of arguments. With regard to the ‘official capacity’ argument, it tried to focus on those cases where immunity was not lifted even though there were cases to the contrary. Concerning the latter, the Court found it sufficient to point to the disagreement as to the interpretation of the relevant provision of the Torture Convention – it was not necessary to adopt one or the other interpretation for the purpose of the final outcome of the case.

At the end, the Court concluded that ‘the grant of immunity to the State officials in the present case reflected generally recognised rules of public international law’ (para 215). Consequently, the restriction on the right to access to justice is legitimate.

Methodological Flaws?

All in all, a couple of methodological flaws can definitely be identified in the Court’s reasoning. First of all, the Court relied to a great extent on the concept of State immunity, rather than focusing on the liability of State officials. This approach had a determining impact on the outcome. Admittedly, the discussion in the various jurisdictions is also influenced by this approach. Put differently, as soon as a State official commits an act this is seen as State conduct, and then the question of immunity is immediately placed under the heading of acta jure imperii, while with regard to State immunity the first question to be posed is whether or not the conduct can be seen as acta jure imperii. Although next the question is posed whether torture can be seen as an official conduct, this is not addressed in terms of the nature and/or purpose of the act as such – which would, arguably, be required by a consistent reliance on the analogy with State immunity. Moreover, when at a certain point the Court did shift its reasoning to immunity of individuals, it still made a connection to State responsibility. Second, as also emphasised by other scholars (Micaela Frulli and Lorna McGregor), no clear distinction was made between criminal and civil cases, and the Court seemed to shift between these two types of claims. Third, no real proportionality analysis was carried out, rather the assessment was based on a presumption implying a rather lenient scrutiny. Fourth, as is often highlighted, the manner in which the comparative law method is employed by the Court (in this case for the purpose of identifying rules of customary international law) is somewhat inconsistent: as indicated, no clear distinction is made between criminal and civil cases, no consistent and systematic analysis of the cases was carried out, and rather quick and unsupported conclusions were derived from the case-law. Taken together, these methodological flaws seem to have greatly influenced the Court in finding no violation. One cannot resist to play with the idea that eventually the Court used methods that would support the outcome the Court had wanted to reach.